The Supreme Court in its recent ruling held that registration of a Will does not automatically accord validity to the document. It reiterated the principle that for a will to be proved as genuine, it must comply with the requirements prescribed in the Indian Evidence Act, 1872 (“Evidence Act”) and the Indian Succession Act, 1925 (“ISA”). In arriving at its decision, the Supreme Court relied on well established principles. 1 

In the instant case2 , a dispute arose as to the genuineness of a Will signed by one Mrs Leela Devi (“Testator”). In the ordinary course, had the Testator died intestate, the respondent in the case would have been the sole legal heir to the estate of the Testator under the provisions of the Hindu Succession Act, 1956 ("Sole Heir”). The Sole Heir was the son of the brother of the Testator’s husband. However, the appellant in the case, being the son of the Testator’s brother (“Nephew”), claimed that the Testator executed a Will dated 27 October 1987 in his favour. Under the provisions of the Will, the Testator had bequeathed her entire estate to the Nephew. He further claimed that the Will was registered in the presence of the Testator as well as two witnesses on 03 November 1987.

On examination, the trial court found that the evidence given by the two attesting witnesses to the Will was contradictory. On appeal, however, the appellate court held that the Testator was of sound mind despite her advanced age of 70 years and that it was natural for her to execute a Will in favour of the Nephew, as he and his family had cared for the Testator’s wellbeing during her twilight years. 

The High Court was of the opinion that as the Nephew had taken a keen interest in the execution and registration of the Will, that would in itself constitute a reason to entertain some suspicion. The High Court further held that the contradictions in the statements provided by the two attesting witnesses to the Will were of significant nature and therefore held that the Will was not proved as per the requirements of the Evidence Act and the ISA. 

The matter eventually went on appeal to the Supreme Court. While examining the facts at hand and the legal provisions pertaining to Wills, the Supreme Court held that the essentials to prove a Will are as follows: 

  • Section 68 of the Evidence Act states that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. 
  • Section 63 of ISA states that a Will may be executed by (a) the testator signing the Will or affixing their mark to the Will; (b) the signature or mark so placed shall appear that it was intended thereby to give effect to the writing as a Will; and (c) the Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix their mark to the Will and each of the witnesses shall sign the Will in the presence of the testator.

Basis the facts in the present case, the Supreme Court noted that following discrepancies in the Will:

  • While the Will was transcribed in English, the Testator affixed her signature in Hindi; 
  • The witness signatures are not on all the pages of the Will and only at the bottom of the last page. Moreover, the witnesses have signed differently: one on top of his name and one below his name; and 
  • The witness signatures appear at the back side of the first page. One witness signed on the left side of the page and the other on the right, with the Testator signing in the middle. 

Moreover, while the first witness claimed that he was present at the time of registration of the Will and that the Tehsildar explained the Will to the Testator and she understood and had willingly signed the Will, the second witness claimed that he had met the Nephew at which point the Nephew had informed the second witness that his signature was required on some papers. The second witness signed the papers without being aware of the contents of the same and neither were the contents explained to him by the Nephew. The second witness stated that he did not see the first witness sign in his presence and neither had he witnessed the Testator signing the Will in his presence.

Hence, considering the abovementioned discrepancies and taking the above requirements of law into consideration, the Supreme Court held that the Nephew failed to prove the validity of the Will. Even though the first witness claimed that the Testator signed the Will in his presence and in the presence of the second witness, the same was categorically denied by the second witness. Besides, the first witness never stated that he affixed his signature to the Will in the presence of the Testator. 

Hence, the Will in question failed to meet the requirements laid down by the law in relation to proving a Will and was held to be invalid. Hence, the Sole Heir, being the only legal heir as determined under the applicable intestate succession laws, was entitled to succeed to the estate of the Testator. 

The Supreme Court has yet again debunked the notion that registration of a Will establishes its validity. Disputes pertaining to genuineness of Wills are common; thus, while mitigating steps can be taken such as registration of the will, annexing a doctor’s certificate to a Will to establish the physical and mental fitness of the testator or video recording of signing of the Will , it is ever so important to tick all the boxes per the requirements of law to make a Will a legally enforceable document. These criteria has been reiterated by the Supreme Court in this ruling.